In the Missouri Court of Appeals Eastern District DIVISION ONE JAMEL YATES, ) No. ED109043 ) Movant/Appellant, ) ) Appeal from the Circuit Court ) of the City of St. Louis vs. ) Cause No. 1922-CC11667 ) STATE OF MISSOURI, ) Honorable Bryan L. Hettenbach ) Defendant/Respondent. ) Filed: April 20, 2021
OPINION
I. Introduction
Jamel Yates (“Movant”) appeals the judgment denying his Rule 29.15 motion without an
evidentiary hearing.1 Movant argues the motion court clearly erred in denying his claim that trial
counsel was ineffective for failing to properly investigate allegations of juror misconduct and
abused its discretion in denying post-conviction counsel’s requests to contact jurors. We reverse
and remand with directions to grant the evidentiary hearing and permit post-conviction counsel
to contact the jurors in preparation for that hearing.
II. Factual and Procedural Background
1 All rule references are to the Missouri Supreme Court Rules (2019).
1 This case began with an apparent attempted robbery in which Movant and an alleged
unknown accomplice shot at four individuals. Movant was charged with: (1) first-degree murder
of Devion Falls, (2) first-degree assault of Darereon Falls, (3) first-degree assault of Kenneth
Berry, and (4) first-degree assault of Alexis Wilson, each of which had an accompanying armed
criminal action count. The evidence at the jury trial showed that Kenneth, Darereon, Devion, and
Alexis2 drove to meet Movant to buy guns. Kenneth stayed by the car with Alexis, while
Darereon and Devion met with Movant behind a building. Movant brandished a firearm and
began shooting at Darereon and Devion as they ran toward the car. Devion was killed, no one
else was wounded. The jury found Movant not guilty on the counts involving the murder of
Devion and guilty for the first-degree assault of Darereon and accompanying armed criminal
action. The jury could not reach a verdict on the first-degree assaults and armed criminal action
counts relating to Kenneth and Alexis, and a mistrial was declared on those counts.
Prior to sentencing, trial counsel filed a timely motion for new trial, raising no issues
regarding juror misconduct. That same day, trial counsel was contacted by a juror, and he spoke
with that juror and another (“Jurors A and B”) shortly thereafter about their concerns regarding
possible misconduct by another juror (“Juror C”). He filed a motion to continue the sentencing,
stating that he had been “apprised of information relevant to both the validity of the jury’s
verdict, and the integrity of any potential sentence” and needed time to “investigate this
information.” The trial court granted the continuance. Trial counsel then filed a motion to
question the jurors, which the trial court ruled was not a timely filed after-trial motion, but to the
extent it was, it was denied. Thereafter, trial counsel filed an amended motion for new trial based
2 Because two of the victims have the same last name, we refer to all of them by their first names to avoid confusion. We intend no familiarity or disrespect.
2 on newly discovered evidence of juror misconduct. Attached thereto were the affidavits of Jurors
A and B. In relevant part,3 those affidavits provide as follows:
Juror A [. . .] The jury deliberated the charges of murder first. After the jury had reached unanimous decisions with regard to the murder charges, the question of the charges of assault in the first degree were considered. There were two issues that were troubling to the jury in considering the Assault in the First Degree Charges. The first issue had to do with determining the nature of what was considered assault in the first degree. There was some question as to whether assault in the first degree was due to the nature of the threat, the type of force, or if it involved deliberately targeting the person whom the defendant was accused of assaulting. There was considerable discussion and deliberation by the jury of the charge against the defendant. The reason this question mattered was due to the wording of the charge: (as an example) You will find the defendant guilty of first degree assault if he attempted to kill or cause physical injury to “Kenneth Berry” by shooting at him.
The other two first degree assault charges against the defendant involved Mr. Darereon Falls and Ms. Alexis. There was discussion as to whether the defendant or “unknown suspect” shot at Mr. Kenneth Berry and Ms. Alexis or if the defendant or “unknown suspect” was shooting at Mr. Davion Falls or Mr. Darereon Falls and the bullet was not aimed at either Mr. Kenneth Berry or Ms. Alexis but hit the car where they were sitting. There were multiple questions4 that were submitted to the judge regarding this question and they were answered by the judge indicating we should consider the instructions we were given and the wording of the charges. These questions continued to cause extended deliberation by the jury.
The jurors took a break in which we could use the bathroom or join the bailiff to go outside if we needed to smoke. Otherwise we were to remain in the room or hallway adjacent to the jury deliberation room. One juror, with long blond hair, chose to smoke a cigarette during the break and her and the Bailiff went outside for the break. After taking the cigarette break with the bailiff and immediately upon resuming deliberation, the juror told the other jurors that she had found out the answer to what we had been trying to decide. That from a discussion with a police officer and “another person of some authority”, she found out what first degree
3 The bracketed ellipses indicate omitted material. Otherwise, all punctuation--as well as grammatical and other errors--is original.
4 The questions were: “When considering whether the defendant is guilty of assault in the first degree, does the degree refer to knowledge of target or intent to target the victim specifically (as opposed to hitting a bystander) or does it refer to the potential degree of harm that may result”; “In the count of Assault in the first degree if the defendant is not shooting at the individual A named in the count but at another individual B, can the defendant be found guilty of assault in the first degree for person A”; and “Might I be the victim of first degree assault if I am assaulted but was not the intended target.” To each of these questions, the trial court told the jury to be guided by the evidence as they remember it and by the written jury instructions.
3 assault meant. She said it was related to the degree of force and that she found out that the charges against Mr. Kenneth Berry and Ms. Alexis would be legitimate even if they were not shot at, but if the bullet was ever in the vicinity of the two. This discussion went on for some time. At one point I said that I would not be taking what she said as the instructions for how we were to interpret the sentence describing the charge, particularly if the judge would not answer the same questions; it is his courtroom and he is the authority that we should be listening to, not a police officer and “another person of some authority” that just happened to be in the vicinity of the juror.
I requested a meeting with the bailiff to express my displeasure that one of the jurors who was with her on a cigarette break obtained information that “was to clarify” the jurors’ questions when the judge was not willing to “clarify” the very same questions. The bailiff told me that I should watch my tone and that I was upset. I said that I was frustrated that the juror came back from her cigarette break with information from two people who were not in positions of authority to be giving the jury information. I said that I was not angry and I was simply frustrated at the situation that violated the rules that the judge had established. The bailiff told me that the juror was giving her opinion and not stating a fact to the other jurors. I said that the juror did not state her information in the form of her opinion but facts that we should consider in deliberation of the charges. The bailiff and I returned to the jury deliberation room and said that the statements the juror previously made were the juror’s opinions and that the person the juror talked to was not a police officer. (I don't remember who the other person was, but there was no question that he had some “authority”; neither the juror nor the bailiff was confused as to who he was.) After some discussion, the bailiff asked the jurors if we wanted the judge to come to the jury deliberation room to answer our questions and clarify the situation. I said yes, that would be great. She said that wasn’t going to happen. (She said something to the effect that we could write down our questions for the judge.)
It had already been a long day and we still had three charges to consider as well as the charge of armed criminal action that went with them. We went back to the wording of the charge, the meaning of the words used and the meaning of the sentence describing the charge. We debated that what “shooting at someone” meant. Because some of the jurors disagreed with others as to the meaning of the sentence describing the charge of first degree assault we resubmitted the questions to the judge. The judge essentially gave the same response to the questions as he had done before.
Prior to submitting the questions, I had decided if the judge did not answer the question with greater clarity than before I would make the assumption that the words had the meaning that I previously knew them to have and that would be the basis for my decision. It was late in the evening and despite differing opinions about the meaning of the sentence, I was clear as to my decision at that time. I told the jury that my decision with regard to the charges of assault by Mr. Jamel Yates upon
4 Mr. Kenneth Berry and Ms. Alexis would be made upon the answers given by the judge.
I remember being relieved and was hoping for a break in waiting for the judge to reply. However, the jury decided to immediately consider the charge of first degree assault by Mr. Jamel Yates with regard to Mr. Darereon Falls. It was late and I hadn’t contemplated the charges against Mr. Jamel Yates concerning Mr. Darereon Falls. I found these charges to be different from the other charges as Mr. Devion Falls had been killed in the vicinity of Mr. Darereon Falls and that whoever (Jamel or “unknown suspect”) was shooting was presumably aiming at those running away. With it being so late and being exhausted, I felt like I had not given it the thought I had given to the other charges and to be honest I don’t know if I could have done that since I was both hungry and exhausted. In the end, the decision was made to find him guilty of the charge of first degree assault and armed criminal action against Mr. Darereon Falls.
[...]
[. . .] the juror who had taken the cigarette break ended up causing considerably more time spent deliberating than otherwise might have occurred. In addition, her influence on the deliberation could have been considerable had questions about the appropriateness of the sources she talked to outside had not been weighed heavily and it being decided that the judge was the ultimate authority of the courtroom. I believe that deliberation of the remaining assault charge against Mr. Jamel Yates may have been decided differently had the jurors deliberated with the thoroughness that was done in the previous charges.
Juror B [ . . . ] We had eight charges to consider. We came to a unanimous decision on a few of the counts rather easily and quickly. We then tackled the remaining charges and encountered great difficulty in deciding how to apply the law as instructed by the court, how to determine what was reasonable, and what we could reasonably conclude from the evidence. By lunchtime, we were frustrated, and we were concerned that we might be at an impasse on the remaining charges. We sent questions to the judge in an attempt to gain some clarity. [. . .]
One of the issues on the table was whether assault in the first degree was determined by intent, meaning intent to harm the person named as the victim in the charge specifically, whether mere presence at the scene made the victims intended targets, or whether the degree of the charge was determined by the potential harm that could result from the defendant's actions. One juror in particular argued that she had insight on this from personal experience. She had indicated during jury selection that she had once been charged with assault for slapping her husband. She explained to us in the jury room that it had been a third degree assault charge because the injury to her husband as a result of her slapping him was not severe. She argued that in this case, the assault was in the first degree because the charge was that the
5 defendant had shot at the victim, thus death or serious injury could result. Collectively, we still could not come to an agreement on the remaining charges.
This particular juror was also a smoker, and jurors that smoked had to be escorted out of the building by the bailiff if they wanted to smoke. She and the bailiff, and sometimes another juror, had taken a few smoke breaks in the course of the trial. The juror said she was going to ask for a sidebar conversation with the bailiff to try to get clarity on this during a smoke break. When the juror returned from her smoke break with the bailiff, she seemed much more at ease, and she said she had answers for us. Several jurors asked her and the bailiff what happened. The bailiff said that the juror would relay their conversation to us and left the room so we could continue deliberating.
The juror told us that the bailiff confirmed that the charge was about degree rather than intent. My recollection is that the juror said she had discussed her own assault charge with the bailiff during the break, and had been given confirmation that her own charge had been third degree because the harm that would occur from a slap was minimal. At first, this seemed to be helpful information to me, in making my own decision about how to vote on these charges. I was not at all clear on who was the intended target of the shooting, if indeed the defendant had even been the shooter, but it was of course clear to me that serious bodily harm or even death could result from being shot. Thus, if I could agree that it might be reasonable to assume the defendant was shooting, which I was struggling with, I could agree that serious harm or death could result from that action. I did not believe that the shooter (whether that was the defendant or the other unidentified person at the scene) was targeting the people in the vehicle. Because the language of the instruction was that the defendant had to be shooting “at” the victim named in the charge, I did not believe the defendant was guilty of assault in the first degree in the charges naming the people in the vehicle.
A juror reminded us that we were not to receive instruction or information regarding the case from anyone beyond the evidence we were presented with in the courtroom and the instructions handed to us by the judge on the charges and how to apply the law to them. If we were going to determine that the degree of the assault was to come from the potential harm caused rather than the intent, that clarification should come from the judge, not from the juror’s accounting of a conversation with the bailiff over a smoke break. A juror requested another sidebar with the bailiff. When that juror and the bailiff returned, a tense interaction happened in the jury room between the bailiff, the juror who had just stepped out with her and with the juror who had been on the smoke break earlier. The bailiff said she wanted to make it clear that she had not discussed the case with the juror during the smoke break, and that whatever the juror had relayed to us was the juror’s own opinion. The bailiff seemed angry. The juror who had just stepped out of the room to speak with the bailiff said that he wanted clarification from the judge, not information that a juror gleaned from the bailiff and the other officer who had been a part of the discussion during the smoke break. This was the first I heard that there was another person
6 involved in the discussion. The bailiff angrily asserted that there had been no other officer in the conversation. It is not clear to me who the third person was, if there was a third person. The juror who had been on the smoke break tried to clarify what was said. The juror arguing with the bailiff said he wanted any and all information and instruction on the case to come only from the judge, and because the judge had not answered the questions sent him by the jury, beyond saying to follow the instructions already given, the juror felt that it was inappropriate to consider any other information that might have been obtained from a discussion with the bailiff. The bailiff asked if we wanted her to bring the judge up to the jury room so we could ask him ourselves. We said yes, that we had not realized that was an option. She repeated her question. We again said yes. The bailiff then said that was not going to happen. She left so we could deliberate, but the atmosphere had become very uncomfortable. I tried to discount in my own mind what the juror had relayed from her conversation with the bailiff. After the bailiff left, we tried again to get clarification by sending questions to the judge, but we received the same answers as before.
[. . .]
[ . . . ] I was concerned about our deliberations. I wondered whether I would have voted the same way on some of the charges had the entire interaction with the bailiff and the juror during their smoke break not been communicated to me.
The trial court denied the original motion for new trial, but did not rule on the amended motion
containing the affidavits. Movant was sentenced to 30 years’ and 15 years’ imprisonment for the
first-degree assault of Darereon and the associated armed criminal action, respectively, which
terms were to be served consecutively.
Movant filed a notice of appeal and, before briefing, requested that this Court remand for
an evidentiary hearing on the amended motion for new trial to address the newly discovered
evidence of juror misconduct, which we granted, and the trial court set a date for the hearing
approximately two weeks after remand. Prior to the hearing, trial counsel filed a motion for
change of judge or recusal. Therein, among the allegations regarding the change of judge, trial
counsel stated that he “wishes to conduct further investigation of the potential misconduct by
speaking with, and obtaining statements from, the remaining jurors.” But he did not actually seek
permission from the trial court to contact those jurors, and no other motion to contact jurors was
7 filed prior to the hearing on the amended motion for new trial. At the hearing, trial counsel orally
requested a continuance, claiming that he had not had sufficient time since the hearing was set to
gather the information he needed and subpoena Jurors A and B. Trial counsel also pointed out
that he had not yet spoken to the other ten jurors and argued that the trial court needed “to hear
what those ten jurors have to say.” The trial court denied the motion for a continuance, and the
hearing proceeded. Trial counsel read the affidavits of Juror A and Juror B into the record. No
other evidence was adduced.
The trial court issued an order denying the amended motion for new trial. Therein, the
trial court noted that the only evidence at the hearing was the affidavits of Jurors A and B, which
demonstrated “no basis for a finding of prejudice.” The trial court concluded that “the juror
frustration and discussion about assault referenced in the affidavits appears pertinent, if at all, to
the assault charges where the victims were [Kenneth and Alexis], charges on which the jury
hung, and not the primary assault charge for which the victim was [Darereon], and for which
defendant was found guilty.” Both Jurors A and B, the trial court found, stated “that instructions
given by the Court were followed, and that the jurors discussed that they were to follow the
judge’s instructions and not what one juror may have deduced from her own prior case or from a
discussion with anyone else.”
Movant’s direct appeal then proceeded, and this Court concluded that the trial court had
not abused its discretion in denying the amended motion for new trial. The judgment on his
convictions for first-degree assault and armed criminal action involving Darereon was affirmed
by per curiam order. State v. Yates, 577 S.W.3d 906 (Mo. App. E.D. 2019. Thereafter, Movant
filed a timely pro se Rule 29.15 motion. Post-conviction counsel was appointed and was granted
8 a continuance to file an amended motion. The same judge who had presided over the trial and the
proceedings on remand presided over these post-conviction proceedings.
Prior to the deadline for filing the amended Rule 29.15 motion, post-conviction counsel
filed a request to view the voir dire list and for permission to contact the jurors “[i]n order to
fully evaluate [Movant’s] claims for post-conviction relief.” That request was denied without
explanation. The next day, post-conviction counsel filed an amended request to view the petit
jury list and for permission to contact the jurors who deliberated “[i]n order to fully evaluate
[Movant’s] claims for post-conviction relief.” Post-conviction counsel stated this request was
made “in good faith on the basis that he believes the petit jury information will uncover a
possibly meritorious post-conviction claim. Specifically, [Movant] seeks to investigate whether
trial counsel was ineffective for failing to investigate alleged juror misconduct.” He alleged that
“the only way to determine if [Movant] was prejudiced by these failures is for post-conviction
counsel to contact the jury members and discover what they would have told trial counsel had he
followed the proper procedures and contacted those who deliberated,” noting there was no other
way for post-conviction counsel to fully evaluate these claims. Again the request was denied
without explanation. Movant sought a writ of mandamus to compel the motion court to grant his
request, which was denied.
Thereafter, post-conviction counsel timely filed an amended Rule 29.15 motion on behalf
of Movant. Movant alleged trial counsel was ineffective because, following remand, he failed to
file a new request for permission to question the jury and failed to offer any testimony or present
any new evidence at the hearing on the amended motion for new trial, relying instead on the two
affidavits that had already been submitted to the trial court months before. Movant alleged that
reasonably competent trial counsel in the same or similar circumstances would have filed a new
9 motion to question the jurors, conducted an investigation, prepared witnesses, and presented
testimony at the hearing on the amended motion for new trial. He alleged that trial counsel’s
conduct was objectively unreasonable and not based on any reasonable trial strategy.
As to prejudice, Movant alleged that but for trial counsel’s post-remand failure to
investigate and present the additional jurors’ testimony about the misconduct at that hearing, “it
is reasonably likely that [Movant] would have been granted a new trial.” Again Movant asked
the motion court to permit post-conviction counsel to contact the jury “for the limited purpose of
investigating juror misconduct and demonstrating trial counsel was ineffective.” Because
permission to contact the jurors had not been granted, Movant alleged his “only option” was to
allege in good faith what the anticipated testimony would be based on the available information
in the record: “one or more of the jurors would testify that extrinsic information about what
constitutes assault in the first degree was obtained and brought it into the deliberation room” and
“that this extrinsic information interfered in the deliberations and that it may have impacted the
verdict.”
The motion court denied the amended Rule 29.15 motion without an evidentiary hearing.
In its findings of fact and conclusions of law, the motion court recited the applicable
law regarding an ineffective assistance of counsel claim and the prohibition on relitigating issues
raised on direct appeal in a Rule 29.15 motion. Then the motion court held as follows:
The court finds movant’s claim is without merit. This issue of juror misconduct was addressed by this Court and by the Court of Appeals. This Court had before it the affidavits of two jurors, and what was stated in the affidavits was consistent with the questions asked by the jury during deliberation. The improper discussion related to counts on which movant was not found guilty, and the jurors said the comments did not affect the verdicts.
The motion court also stated that Movant “failed to allege grounds that would entitle him to
relief if true and that are not refuted by the record.” This appeal follows.
10 III. Standard of Review
We review the motion court’s findings of fact and conclusions of law for clear error.
Shockley v. State, 579 S.W.3d 881, 892 (Mo. banc 2019). Those findings and conclusions are
presumed correct and will only be found clearly erroneous if, after reviewing the record, we are
left with the definite and firm impression a mistake was made. Id. We review denial of post-
conviction counsel’s request for juror information for an abuse of discretion. McFadden v. State,
553 S.W.3d 289, 301 (Mo. banc 2018). An abuse of discretion occurs when the ruling is
clearly against the logic of the circumstances before the court and is so unreasonable and
arbitrary that it shocks one’s sense of justice and indicates a lack of careful, deliberate
consideration. State v. Carpenter, 605 S.W.3d 355, 359 (Mo. banc 2020).
IV. Discussion
In his first point on appeal, Movant contends it was an abuse of discretion to deny post-
conviction counsel’s requests to contact jurors. In his second point on appeal, Movant contends
the motion court clearly erred in denying his ineffective assistance of counsel claim without an
evidentiary hearing. We agree.
A. Applicable Law
Juror Misconduct
While there is no right to contact jurors, courts have the discretionary power to grant
permission to contact jurors after trial and in a post-conviction proceedings where there is a
credible indication that juror misconduct has occurred. See Strong v. State, 263 S.W.3d 636, 643-
44 (Mo. banc 2008) (affirming denial of request to contact jurors that contained only a “general
allegation of juror misconduct” and did not “articulate any basis for suspecting juror
misconduct”). Courts will not permit counsel to go on a “fishing expedition” to find a juror who
11 will support an allegation of misconduct. McFadden, 553 S.W.3d at 301 (affirming denial of
request to contact additional jurors about misconduct that had been disproved on initial
questioning of juror accused of intentional nondisclosure, where there was no indication other
jurors would have materially different information about the matter).
“To be entitled to a new trial for juror misconduct, the movant has the burden of proving
that the alleged juror misconduct actually occurred.” State v. Stephens, 88 S.W.3d 876, 883 (Mo.
App. W.D. 2002). While juror testimony is generally inadmissible for the purpose of impeaching
a verdict, jurors can testify about misconduct that involves the gathering of extrinsic information.
See Travis v. Stone, 66 S.W.3d 1, 4 (Mo. banc 2002)5; see also Strong, 263 S.W.3d at 643-44.
Once it is established that juror misconduct involving extrinsic information occurred, a
rebuttable presumption of prejudice arises, and the burden shifts to the non-moving party to
overcome that presumption with evidence that the misconduct did not improperly influence the
verdict. See Travis, 66 S.W.3d at 3, 4; Stephens, 88 S.W.3d at 883. The materiality of the
extrinsic information is an important factor in determining prejudice. See Stephens, 88 S.W.3d at
883-84. The outcome of a motion for new trial under these circumstances often depends on
weighing jurors’ live testimony and affidavits to determine prejudice. Compare Travis, 66
S.W.3d at 5-6 (finding testimony of one juror, who denied effect of her misconduct, was not
sufficient to overcome the presumed prejudice) with Smotherman v. Cass Regional Medical
Center, 499 S.W.3d 709, 713 (Mo. banc 2016) (finding credible testimony of eight jurors that
extrinsic information did not influence their deliberations was sufficient to rebut presumption of
prejudice).
Ineffective Assistance of Counsel
5 Civil cases are equally applicable to this issue in a criminal case. See Stephens, 88 S.W.3d at 882, fn.3 (“No rational basis appears for distinguishing between civil and criminal cases as to the issue presented).
12 Trial counsel’s conduct regarding a juror misconduct issue can be the basis of an
ineffective assistance claim. See, e.g., Dorsey v. State, 156 S.W.3d 825, 830 (Mo. App. W.D.
2005). As with any ineffective assistance of counsel claim, the movant must show that (1)
counsel failed to exercise the level of skill and diligence that “reasonably competent” counsel
would exercise in a similar situation and (2) there is a “reasonable probability” that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different.
Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984). To obtain an evidentiary hearing on
such a claim, (1) the movant must allege facts, not conclusions, that if true warrant relief, (2) the
facts must raise matters not conclusively refuted by the record, and (3) the matters complained of
must have resulted in prejudice to the movant. Reliford v. State, 186 S.W.3d 301, 304 (Mo. App.
E.D. 2005). “An evidentiary hearing may only be denied when the record conclusively shows
that the movant is not entitled to relief.” Wilkes v. State, 82 S.W.3d 925, 928 (Mo. banc 2002)
(emphasis in original).
B. Analysis
With the above principles in mind, we address together Movant’s points regarding the
propriety of denying the amended Rule 29.15 motion without an evidentiary hearing and the
requests to contact jurors.
Relitigation of Juror Misconduct Raised on Direct Appeal
Movant argues that the motion court’s conclusion that his claim had no merit because
“this issue of juror misconduct” had already been addressed on direct appeal is clearly erroneous.
We agree. While an issue decided on direct appeal cannot be relitigated in a post-conviction
motion by cloaking it in a theory of ineffective assistance of counsel, that is not what happened
here. See Hannon v. State, 491 S.W.3d 234, 245 (Mo. App. E.D. 2016). The issue on direct
13 appeal was whether the trial court abused its discretion in denying the amended motion for new
trial, and our review was limited to the evidence before the trial court, which consisted of only
the affidavits of Jurors A and B. The issue raised in Movant’s post-conviction motion asks a
different question: whether counsel was ineffective in failing to obtain and present additional
evidence from the other jurors in support of the amended motion for new trial and whether that
additional evidence would have changed the outcome of that motion.
Sufficiency of Allegations Warranting Evidentiary Hearing
The other stated basis for denying Movant’s amended Rule 29.15 motion without an
evidentiary hearing--that Movant “failed to allege grounds that would entitle him to relief if true
and that are not refuted by the record”--is also clearly erroneous. It is not clear from this
boilerplate language what in particular the motion court believed was refuted or insufficiently
alleged. The State argues that (a) Movant failed to allege facts showing that any of the other
jurors would have provided testimony about the juror misconduct beyond what the affidavits of
Jurors A and B had already established and (b) the record refuted the allegation that there was a
reasonable probability the amended motion for new trial would have been granted if trial counsel
had presented additional juror testimony. We disagree.
First, Movant’s inability to plead with specificity what the other jurors would have said
was entirely the result of the motion court’s refusal to give post-conviction counsel permission to
contact those jurors before filing the amended Rule 29.15 motion. We find those pre-filing
refusals--as well as the implicit denial of the same request in the amended Rule 29.15 motion
itself--to be an abuse of the motion court’s discretion.
The affidavits of Jurors A and B undisputedly provided a credible basis for suspecting
juror misconduct, meeting the threshold requirement for granting permission to contact jurors.
14 See Strong, 263 S.W.3d at 644; McFadden, 553 S.W.3d at 300-01. And those affidavits showed
that all of the jurors had been exposed to this misconduct: Juror C brought extrinsic information
about what constitutes first-degree assault into the jury room, which was discussed at length by
the jurors when deliberating the first-degree assault charges. But the affidavits contain the
accounts of only two of the twelve jurors in the room. Common sense dictates that among twelve
jurors there are likely to be differences in their accounts of this event, as confirmed by the
differences in the accounts of Jurors A and B. Gathering the accounts of all the people who were
present during the misconduct, including Juror C, was necessary for post-conviction counsel to
determine whether any of those accounts would have made a difference at the hearing on the
amended motion for new trial. The requests were not, as the State suggests, a fishing expedition
to find support for an otherwise unsubstantiated allegation of misconduct. See c.f. McFadden,
553 S.W.3d at 301.
The motion court gave no explanation for refusing post-conviction counsel’s requests,
and we cannot find a logical reason for doing so under these circumstances. The only conclusion
to be drawn here is that denying the requests was an abuse of discretion. Thus, to the extent
denial of the Rule 29.15 motion was based on this particular pleading deficiency, it was clearly
erroneous under these circumstances. See Taylor v. State, 728 S.W.2d 305, 307 (Mo. App. W.D.
1987) (finding error for motion court to “deny the motion on the ground that the movant’s case
was unsupported” while also denying movant the right to offer testimony in support of that
motion).
Second, the record does not conclusively refute Movant’s allegation that there was a
reasonable probability the amended motion for new trial would have been granted if trial counsel
had presented additional juror testimony instead of only two jurors’ affidavits. The State argues
15 that the record shows those affidavits were sufficient to establish the misconduct of Juror C and
raise the presumption of prejudice, even without testimony from the other jurors. See Travis, 66
S.W.3d at 3, 4; Stephens, 88 S.W.3d at 883. Additional testimony about the misconduct, it
contends, would have been cumulative on that issue, and as to prejudice, jurors would not be
permitted to testify that the improper extrinsic information influenced their verdict. But
testimony that might be deemed inadmissible to impeach the verdict is not the only testimony
that might impact a prejudice determination. Additional admissible juror testimony about the
facts surrounding the interjection of extrinsic information into their deliberation could have
impacted the prejudice determination. See generally Neighbors v. Wolfson, 926 S.W.2d 35, 37
(Mo. App. E.D. 1996) (distinguishing between factual testimony and testimony about matters
inherent to the verdict, such as that jurors “acted on improper motives, reasoning, beliefs or
mental operations”). For instance, other jurors’ testimony might have provided additional or
different information about the content of the extrinsic information Juror C shared or the context
in which that extrinsic information was discussed. Testimony on these issues could have
impacted whether the extrinsic information was deemed material to the charge on which Movant
was convicted, which is an important factor in determining prejudice. See Stephens, 88 S.W.3d at
883. The record does not foreclose the possibility of a different prejudice determination if the
amended motion for new trial was supported by testimony from more than just two of the twelve
jurors. See Travis, 66 S.W.3d at 5-6; Smotherman, 499 S.W.3d at 713.
Of course, it remains to be seen what those other jurors will actually say and whether it
will support Movant’s claim for relief, making it virtually impossible to say conclusively that he
is not entitled to relief. This record leaves us with the firm and definite impression that, in this
16 particular situation, it was a mistake to deny Movant a meaningful opportunity to gather support
for his claim and present it at an evidentiary hearing.
Points I and II are granted.
V. Conclusion
For the foregoing reasons, the judgment denying Movant’s amended Rule 29.15 motion
without an evidentiary hearing is reversed. The case is remanded with directions to (1) grant
Movant’s request for an evidentiary hearing on the claim raised in the amended Rule 29.15
motion and (2) grant post-conviction counsel permission to contact the jurors who deliberated in
this case in preparation for that evidentiary hearing.
_______________________________ Colleen Dolan, P.J.
Robert M. Clayton III, J., concurs. Kelly C. Broniec, J., concurs.